AND FOR THIS, RECUSAL ISN'T ENOUGH.
March 21, 2010 was the day ObamaCare passed the House and, for all intents and purposes, became law. It’s hard to believe Kagan, as solicitor general, wouldn’t have showed up for a legal strategy session held that day, let alone at any point over the previous six months as the bill was working its way through Congress. But here’s the excuse they’re going to offer the public:Just so we’re straight on the timeline here: On March 21, the day ObamaCare was passed, Katyal is inviting Kagan to strategy sessions about the new law. On April 9, John Paul Stevens resigns and speculation erupts about Kagan succeeding him. On May 17, Katyal is suddenly telling people that Kagan’s never been involved in anything — even though she is, in fact, the solicitor general of the United States and even though he explicitly invited her to a meeting about the law less than two months earlier — and Kagan is warning people via e-mail to make sure everyone has their story straight on what she knew by “coordinating.”
On May 17, 2010, for example, Tracy Schmaler, a Department of Justice spokesperson wrote to Katyal, “Has Elena been involved in any of that to the extent SG office was consulted … ?”
“No, she has never been involved in any of it. I’ve run it for the office, and have never discussed the issues with her one bit,” was Katyal’s response. He then forwarded the correspondence to Kagan, saying “This is what I told Tracy about Health Care.”
Kagan’s response: “This needs to be coordinated. Tracy you should not say anything about this before talking to me.”
Other email chains between Kagan, White House lawyers and Vice President Joe Biden’s then-Chief of Staff Ronald Klain show a coordinated effort on how to respond to questions about the health-care law that may have arisen in the confirmation hearings.
KAGAN SHOULD BE IMPEACHED.
Despite her prominent role in the Obama Administration as a legal advisor and Solicitor General, the attorney who argues for the administration at the Supreme Court, Kagan denied she played any role in fashioning the ObamaCare legislation or assisting Obama or his officials on it. Asked if she would recuse herself, Kagan told the Senate she would be “carefully considering any arguments made for recusal and consulting with my colleagues and, if appropriate, with experts on judicial ethics.”FROM JEFF SESSIONS AT THE TIME:
Dear Solicitor General Kagan:BY NOT RECUSING HERSELF, SHE IN EFFECT LIED. SHE PROMISED WHE WOULD AND SHE BROKE HER PROMISE.
Thank you for the answers you provided in response to the written questions submitted following your confirmation hearing. Although your answers have been helpful, there are some responses that need clarification in order for the Committee to have the information it needs to thoroughly review your record. Notably, we are concerned about the standard you would use to decide whether to recuse yourself from litigation you participated in as Solicitor General. In particular, we are concerned about litigation that was clearly anticipated, but had not yet to reached the point where your approval was sought for filings or pleadings.
In response to Senator Sessions’ Question 1(b)(i), you stated:
“I would recuse myself from any case in which I approved or denied a recommendation for action in the lower courts. This category would include cases in which I authorized an appeal, intervention, or the filing of an amicus brief. It would also include cases in which I denied leave to intervene or file an amicus brief.”
You also stated:
“I would also recuse myself from any cases in which I did not take such official action but participated in formulating the government’s litigating position or reviewed a draft pleading. In all other circumstances, I would consider recusal on a case-by-case basis.”
In response to a question from Senator Coburn at your hearing, you indicated that you had not been asked to express an opinion on the “merits” of the health care bill (Pub. L. No. 111-148) in your role as Solicitor General.
SHE SHOULD BE IMPEACHED.